LC: Speech by Secretary for Security

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Following is the speech by the Secretary for Security, Mrs Regina Ip, in the Legislative Council today (Wednesday):

Madam President,

I move that the motion set out in the agenda be carried.

I am sure Members present are all very familiar with the background of today's debate. I will recapitulate briefly the major developments of the issue of the right of abode (ROA) over the past few months. On 29 January, the Court of Final Appeal (CFA) delivered a judgment of major significance on the ROA issue, resulting in a tremendous increase in the number of persons eligible for ROA and changes in the mechanism regulating the entry into Hong Kong for settlement of Mainland residents with ROA. In spite of strenuous efforts in implementing the CFA judgment, the implementation difficulties encountered in the past few months; the population problems triggered by the ruling; as well as the far-reaching impact on our society and economy have left us with no alternative but to contemplate repeatedly the true legislative intent of the relevant provisions of the Basic Law, with a view to resolving the crisis brought about by the CFA judgment. Recent public surveys and views expressed by Hong Kong people through various channels clearly indicate that they are deeply worried about the unbearable consequences brought by the CFA ruling, and they earnestly hope that the Government will promptly work out a solution to the plight Hong Kong is placed in. Against this background, the Chief Executive has decided to submit a request through the State Council to the Standing Committee of the National People's Congress (NPCSC) seeking its interpretation of the relevant provisions of the Basic Law, so as to clarify the true legislative intent and subsequently solve the impending population problem.

I wish to stress that the two provisions for which the Chief Executive will be seeking an interpretation are:

A) BL 22(4), which reads,

"For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

We hope the NPCSC will clarify whether the "people from other parts of China" mentioned in BL 22(4) should be interpreted as people from various provinces, autonomous regions and municipalities directly under the Central Government (except the Taiwan province and Macau Special Administrative Region), including children born in the Mainland of Hong Kong permanent residents. The clarification would help restore the effective One-way Permit quota arrangement to which Mainland residents are subject for entering Hong Kong for settlement.

B) The provision of BL 24(2)(3) is as follows:

"Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)."

We hope that the interpretation of the NPCSC will clarify whether BL 24(2)(3) means that parents of children of Chinese nationality born outside Hong Kong or either of them must have already become a Hong Kong permanent resident in accordance with BL 24(2)(1) or BL 24(2)(2) at the time of their birth. Clarification of this is very important because the majority of the additional ROA claimants were born at a time when neither of their parents had yet become a Hong Kong permanent resident.

However, we do not intend to clarify whether the term "persons" stated in BL24(2)(3) includes persons born out of wedlock. There is no reason to believe that the relevant CFA judgement is not consistent with the true legislative intent. We also accept the CFA ruling which holds that the arrangement under the existing legislation that only persons born outside Hong Kong of female Hong Kong permanent residents are eligible for ROA is discriminatory and inconsistent with the International Covenant on Civil and Political Rights.

To clarify the two points mentioned above is very important. BL 22 (4) ensures Mainland residents' entry into HK for settlement in an orderly fashion through the One Way Permit quota scheme, while BL 24 (2) (3) affects the number of persons born outside HK who are eligible for ROA. It is believed that the majority of the newly eligible persons (the number of eligible persons of the first generation is estimated to be about 0.7 million) were born at a time when neither of their parents had not become a Hong Kong permanent resident. Therefore, if NPCSC accedes to our request in making the interpretation as above, the number of eligible persons would be substantially reduced to not more than 0.2 million. This would restore the former order of the entry of Mainland residents into HK through the quota arrangement.

The Administration considers that seeking an interpretation of the Basic Law from the NPCSC is lawful, reasonable and is the most prompt and complete solution, for the following reasons-

First: Seeking an interpretation of the Basic Law from the NPCSC is entirely consistent with the Basic Law. Under BL 158(1), the NPCSC is vested with the power of final interpretation of the Basic Law. In the context of Mainland residents' entry into Hong Kong for settlement, as provided for under BL 22(4) and in accordance with the "Interim Measures for the Control of Chinese Citizens Travelling on Private Business to or from the Regions of Hong Kong or Macao" endorsed by the State Council in 1986, the established policy of the Mainland is to regulate the number of Mainland residents to Hong Kong for settlement through the One Way Permit quota scheme, in order to safeguard the prosperity and stability of Hong Kong. Additionally, paragraph 4 in Section XIV of Annex I to the Sino-British Joint Declaration also stipulates that "entry into the HKSAR of persons from other parts of China shall continue to be regulated in accordance with the present practice."

As for the ROA of persons born outside Hong Kong of Hong Kong people, which is related to BL 24(2)(3), both the interpretation of this provision agreed by the Joint Liaison Group in 1993 and the view endorsed at the plenary session of the Preparatory Committee in August 1996 concerning the implementation of BL 24(2) clearly indicate the provision that either of the parents of these children must have already become a Hong Kong permanent resident at the time of their birth before they may claim their ROA.

All of the above has been reflected in the Immigration Ordinance passed in 1997. Before the CFA judgment, the Immigration Ordinance stipulated that people from the Mainland could only enter Hong Kong to acquire their ROA by holding an One-way Permit affixed with a Certificate of Entitlement and persons born in the Mainland to Hong Kong residents were eligible for ROA only if either of their parents was a permanent resident at the time of their birth. Given the drafting history of and our belief in the true legislative intent of the Basic Law described above, we have reasons to believe that the Immigration Ordinance correctly reflected the true legislative intent of the two relevant provisions of the Basic Law. In the circumstances, we consider that seeking an interpretation of the Basic Law is more appropriate than amending it. In interpreting the Basic Law, the NPCSC will only be clarifying and confirming the true legislative intent of the relevant provisions because its interpretation must be faithful to that intent. On the contrary, if the NPCSC is to amend the Basic Law, it will be changing the legislative intent of those provisions.

Secondly: According to BL158(1), the power of final interpretation of the Basic Law is vested in the NPCSC, while the CFA enjoys the right of final adjudication of cases under BL158(2) and (3). Since the interpretation of the Basic Law by the NPCSC is explicitly provided for, the exercise of the right to make legislative interpretations of national laws by the NPCSC is part of the new constitutional framework after our reunification with the Mainland. The legality of this mechanism is unquestionable.

Thirdly: The impending population crisis need to be addressed in the overall interest of Hong Kong. To amend the Basic Law, the earliest opportunity will be in March next year when the NPC convenes a meeting and so may have an opportunity to consider our request. During these 10 months, the Government would be obliged to announce the new procedure for C of E applications and accept these applications, or else we would be criticised for not obeying the law. There may even be new litigation against the Government for delaying the implementation of the judgment. In the circumstances, we may have to start allowing applications for Certificates of Entitlement before next March. The number of such applications may be in the order of tens of thousand.

If we decide to make an amendment according to the procedures set out in the Basic Law, unless we can make sure that the amendment has retrospective effect before we proceed with the amendment, there would be influx of illegal immigrants, and both the Hong Kong and Mainland residents affected would be greatly disappointed and anxious, thus undermining the stability of the two places. On the other hand, if our request for an interpretation of the Basic Law from the NPCSC is accepted, the problem may immediately be solved at the NPCSC meeting in June.

Fourthly: Seeking an interpretation of the Basic Law from the NPCSC would be a more practical and feasible solution. If the HKSAR requests to amend the Basic Law, it would require the approval of two-thirds of the Hong Kong deputies to the NPC, the approval of two-thirds of the Legislative Councillors and the consent of the Chief Executive. As you may be aware, 27 Hong Kong deputies to the NPC openly indicated a few days ago that they would not support the amendment option. In other words, we could foresee that it would be very difficult to proceed with the amendment option, or at least we would need more time to win sufficient support before the amendment proposal could be put to the NPC agenda.

Before making a decision, we are of course aware that quite a few quarters in our community, especially those from the legal profession, expressed their concern that the proposal to seek NPCSC's interpretation of the BL will damage the rule of law, affect the independence of our judiciary, undermine CFA's final jurisdiction and weaken our autonomy. Later on, my colleague, the Secretary for Justice and Chief Secretary for Administration will respond to such criticism and misunderstanding. I wish to point out that after thorough deliberation of the issue in the past few months, we strongly believe that the proposal to seek NPCSC's interpretation of BL through the State Council will not damage the rule of law, affect our independent judicial power, strike CFA's final jurisdiction and reduce our autonomy.

We strongly trust that after the issue was resolved, there will be the following advantages -

(1) the true legislative intent of those important provisions relating to ROA in BL will be clarified;

(2) legislation relating to ROA will become clearer and more certain;

(3) the impending population crisis and possible economic and social problems arising from a likely admission of a maximum of 1.67 million new arrivals will be resolved;

(4) the order of entry of Mainland residents into Hong Kong will be resumed; and

(5) the worries about uncertainties in the past few months amongst Hong Kong people will be driven away. We therefore can resume our planning and building for the future on a solid basis.

As some Members pointed at yesterday's meeting, ROA issue is the most serious question HKSAR has ever encountered since its establishment. ROA issue is also the most important and fundamental issue of our society, for it relates to our fundamental rights and for it relates to the number of people eligible for becoming permanent residents. The issue also entails the resources required by the Government to meet the needs of these people in the next decade to promote their integration into society. Without doubt, the deployment of huge resources to meet the needs of the new arrivals will have serious impact on the long-term development of our society. Therefore, we have to solve the problem promptly without any delay. There is no comparison of the ROA issue and, as suggested by some members in our community, the question of HKSARG seeking NPCSC's interpretation on matters such as business dispute or land compensation. We strongly believe that CE's action to seek NPSCS's interpretation is correct, lawful and in the long-term interest of Hong Kong. I hope that Members will lend us the support for the motion.

President, I hereby move the motion.